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January 22, 2007

Several Case on Context versus Literalism

Coincidentally, a few cases that I'd pulled aside to read happen to address an issue we were discussing in comments below, contextual versus literal textualism.  It seems to me, after reading them, that they confirm a criticism of textualism, viz., that the whole notion of plain meaning  is, itself, subjective:  whether the meaning is plain is itself a subjective judgment, and so ought to be explained rather than assumed by a judge.

It's hard to summarize these cases in a meaningful way, but I'll try to give you a flavor.

A.T. Massey Coal Co. v. Holland, __F.3d __, 2006 WL 3746139 (4th Cir. Dec. 21, 2006).  In addition to the issues discussed in another post, the majority in a dispute involving coal benefits held that the word "reimbursement" meant the amount of money that funds received from Medicare, rather than the amount the funds actually paid out to fund recipients.    Not only did the majority's position further a circuit split on this issue, it rejected (without deference) the agency's interpretation of the word.  The majority emphasized that it was taking a contextual approach, noting that although the dictionary definitions could go either way, "the Coal Act is not agnostic to these varying meanings."  It turned, then, to the statutory context for the term as well as legislative history.  The majority viewed its interpretation as being contextual, not "abstract."  The majority, based on its view, held the term was clear and ambiguous, and thus applied "plain meaning" based on context.

There's several law review articles in there, but it's interesting to note that the court used historical legislative activity to ascribe plain meaning, which is something the courts do, but it then raises the question of: if plain meaning turns on context, why not all context, including legislative history?  By the way, as I noted below, I'm all for using a holistic approach to determe meaning, and don't want to be taken as criticizing the court's effort here to explain its result -- that's what normally bothers me about plain meaning opinions, as much is left in a black box called "plain meaning" -- it's just that here... the dissent concluded that because there was no definition of "reimbursement" in the statute, and dictionaries disagreed on its meaning, and appellate courts had split on its meaning,  the statute was ambiguous. As a result, the dissent concluded that it was proper to look at the legislative history (relied on by the majority), but held it was unhelpful and should not have been used.  So, relying on the same context as the majority but rejecting legislative history, the dissent concluded the term had the opposite meaning as the majority.

So, here we have a "plain meaning" majority using legislative history to determine meaning, and a dissent using the ambiguity analysis concluding that legislative history was unreliable.

Is contextual plain meaning less reliable than intentionalism?  Is it any different? 

Some other cases dealing with this point, the first one suggested by a reader:

Campbell v. Allied Van Lines, 410 F.3d 618 (9th Cir. 2005).  This case is fascinating. All it deals with is whether a shipper who sues a carrier for damaging a shipment gets attorneys fees.  The statute at issue seems to make it a condition precedent to recovery that the shipper first try to arbitrate the case.  (The statute presents the condition as a negative, and interpreting it  has split the courts.)  The majority, rather than looking at arbitration as a condition, viewed it instead as an option:  if arbitration works quickly, then the shipper shouldn't get attorney's fees; but nothing requires the shipper to use arbitration to get attorneys' fees.  So, a shipper who sues first gets attorneys' fees; a shipper who uses arbitration first, but is forced to sue, doesn't.  Doesn't exactly encourage arbitration.  The dissent looked at the majority as using a literalistic form of textualism:  "the majority adheres to a decontextualized literalism that even the staunchest defenders of textualism eschew."  As a result, the dissent relied on the context of the phrase, noting that it was "in the midst of a statute designed to promote and to facilitate arbitration under the Carmack Amendment."  Thus, the dissent, in determining "contextual plain meaning" looked to the purpose of the statute!

So, does contextual plain meaning differ from purposivism?

Finally, similar debates exists in Maryland-National Capital Park and Planning Comm'n v. Anderson, 909 A.2d 694 (Md. App. 2006) and Doe v. Kmehamha Schools, __ F.3d __, 2006 WL 3489836 (9th Cir. Dec. 5, 2006).  (NOTE: I kept getting a "file damaged" error when I tried to open it.)

So, if literal textualism is bad, and if contextual textualism is good, but turns on purpose and intent... what's the difference?

In our book, we concluded that all of this was really a question of emphasis: a court that finds meaning very clear from the text won't go to secondary sources at all, but will more readily look at them when things are less clear.  Alaska and some other states admit to using this sort of "sliding scale" approach, and perhaps that's what's going on, under other names, in the federal courts. 

January 22, 2007 in Current Affairs | Permalink


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Textualists undoubtedly agree that purpose must be considered. Textualists assume that statutory language must be interpreted by reference to how an objective reader of the statutory language would understand that language, rather than by reference to legislatorss and committee stafferss understanding of that language (hence the per se rejection of legislative history).

As far as how does contextual plain meaning differ from purposivism, I think that distinction is best illustrated by Scalia's dissent in Moskal v. U.S:

"What displaces normal principles of construction here, according to the Court, is "Congress' broad purpose in enacting § 2314--namely, to criminalize trafficking in fraudulent securities that exploits interstate commerce." Ibid. But that analysis does not rely upon any explicit language, and is simply question-begging. The whole issue before us here is *130 how "broad" Congress' purpose in enacting § 2314 was. Was it, as the Court simply announces, "to criminalize trafficking in fraudulent securities"? Or was it to exclude trafficking in forged securities? The answer to that question is best sought by examining the language that Congress used--here, language that Congress has used since 1790 to describe not fraud but forgery, and that we reaffirmed bears that meaning as recently as 1962 (in Gilbert ). It is perverse to find the answer by assuming it, and then to impose that answer upon the text." Moskal v. U.S. 498 U.S. 103, *129-130 (1990) (Scalia, J., dissenting).

Again, textualists do not reject purpose; the textualist is just concerned with purpose as indicated by statutory language, rather than the "general purpose" that the judge independently assumes must guide the construction of the text.

See also Isenbergh, “Musings on Form and Substance in Taxation,” 49 U.Chi.L.Rev. 859, 874 (1982)(“Hard grappling with the facts of a case and the inner workings of a statute, although both difficult and intellectually admirable, is frequently passed off as a trivial or excessively ‘formal’ exercise...[The court will instead make] an inquiry about the ‘larger’ nature of the statute itself. The latter exercise is in fact quite easy, requiring only the assertion of a statutory purpose that encapsulates one’s own tastes, either generally or regarding the transaction under scrutiny.”).

Isenbergh's last sentence, I think, is the type of "purposivism" that textualists object to. For example, stating that the "purpose" of the tax code is to deny Bob Jones University 501(c)(3) treatment-- in direct contravention of the statutory text-- strikes me as a rather different approach from examining the language of a particular statute in the context of the entire act. I have no doubt that there is a significant gulf between purposivism and "contextualism"; the former simply invovles the creation of a statutory purpose while the latter is rooted in an understanding of the statutory text itself.

It is not hard to see how purpose can be suggested by the text itself. Section 1 of the Internal Revenue Code imposes a tax on income. It is fair to say that the purpose of that statute-- as indicated by its text-- is to raise revenue. What is more dubious is saying that the "overall purpose" of the Code is to deny a taxpayer benefits, regardless of what the Code says. The distinction between the approaches seems clear to me.

That being said, I do not think judges who invoke extrastatutory purposes are acting in bad faith. I just think that that method of "interpretation" is best left for the intellectually feeble and should be abandoned in the courtroom.

Posted by: andy | Jan 23, 2007 1:40:07 AM

Of course you're right, but I think you're both begging the question, and turning intentionalism and purposivism into caricatures of themselves.

The question is begged: how is it different? I think it's merely emphasis, and pretending (as Scalia and others do) that textulism is this refined, holy and better approach is based on an inaccurate portrayal of what "contextual textualism" is.

The strawmen caricatures you make of intentionalism and purposivism don't further the analysis, either. Of course there's bad purposivism and bad intentionalism.

As for intellectually feeble and abandoned in the courtroom, what probably ought to be abandoned is judges saying that there is "one way" to interpret a statute. That forces lawyers to adopt their rubric to the problems before them. The risk we face is the rubric controlling the analysis and result.

And, btw, I disagree, strongly, that judges don't care about these issues. I'm sure many don't. I'm sure the judges who decide whether someone goes to jail for 25 years or more, or not, for getting addicted to pain killers care about both the individual justice in the case, as well as the long-term impact. Even when deciding a question of tax law, I hope they care.

Posted by: David Hricik | Jan 23, 2007 2:45:15 AM

"The strawmen caricatures you make of intentionalism and purposivism don't further the analysis, either. Of course there's bad purposivism and bad intentionalism"

Well, maybe in your area of expertise my descriptions are caricatures, but I think in the area of the tax law, they are pretty darn accurate.

There are entire opinions now in which the government does not interpret any statutory language whatsoever. In fact, the goverment will *stipulate* that a taxpayer has complied with all statutory requirements but ask the court to examine general purposes. See, e.g., 113 T.C. 214, rev'd 277 F.3d 778 (5th Cir. 2001).

What you refer to as a "caricature" is what I see as the status quo, at least in the tax area. I simply cannot accept that in interpreting a statute, courts not are even obliged to consider the statute's language and that even if the government *stipulates* that a party has complied with a statute, the court must still inquire into the "general purpose." That does not make any sense to me-- how can a court interpret a statute by not even looking at it?

Posted by: andy | Jan 23, 2007 3:11:45 AM

Whatever else you might think of Bush, I hope you caught his disgust tonight regarding the fact that staffers sneak things past him in committee reports. Bush explicitly stated that he was upset by the fact that Congressmen would not put their pork projects up for his signature, but would instead stick descriptions of those projects in committee reports.

I'd hope that that is as good a rejection of intentionalism as there could be, even though the President has demanded that his constitutional rights to reject pork projects be respected.

But, I guess I'm too optimistic. I know that "intentionalists" will continue to look at what was in the legislator's "mind" and argue that large corporations must continue to get large tax exemptions because legislative history is *so* important to statutory interpretation. Feel free to dismiss my comments as a caricature, but whether you want to accept it or not, *that* is how our tax system works. It's unfortunate that our system of government has come to this. But, a tax lawyer is ethically bound to find favorable statements in a statute's legislative history to argue that his client should be exempt from tax, even when that lawyer wrote that statement in the legislative history himself. Sad.

Posted by: andy | Jan 23, 2007 9:43:57 PM

Also, though this conversation may be impassioned (at least on paper), I should say that I fully respect your opinion and fully appreciate that what may be an accurate description of the Tax Court or tax cases probably does not serve as an accurate description of all courts/cases.

And, comments about feeble-mindedness are admittedly farcical; legal minds far more potent than this one have embraced purposivism. But, the forums for spirited debate about statutory interpretation are few and far inbetween, so I hope you won't mind an occasional exaggeration :).

Posted by: andy | Jan 24, 2007 4:40:03 AM

I caught that reference to "committee reports" and thought it funny. I kept wondering: did that sentence make any sense to 99.99% of Americans?

It sounds like there may be a whole world of "tax statute interpretation" that I don't know much about. (You know what, I'm glad though because I hate hate hate tax law, regulations, forms, and so on, but I digress.)

No offense taken - and none intended. It's fun stuff. But notice that YOU care about tax statutes and how they ought to be interpreted...

Posted by: David Hricik | Jan 24, 2007 11:07:26 AM

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